Administrative Closure Order
An administrative closure order for a business is a decision issued by a prefect (or the police prefect in Paris), ordering the closure of an establishment. It is not a sanction imposed by a judge, and no court order is required for the prefect to issue it.
The procedure to be followed by the administration before issuing a closure order
A letter from the prefect must be sent to the business owner and contain the following information:
– informing the person concerned of the reasons for the measure being considered;
– expressly inviting the business owner to submit written and, if applicable, oral observations, setting a deadline for doing so (Article L122-1 of the French Code of Relations between the Public and the Administration).
This therefore implies allowing the person concerned sufficient time to submit their observations. A period of 15 days is generally considered sufficient to ensure respect for the rights of the defense.
Of course, it’s essential to consult a lawyer from the very first letter, as they can help you avoid or mitigate a penalty and thus prevent lost revenue. It’s even crucial to take action beforehand, as soon as the prefecture or town hall officials begin their physical inspection.
A delay of less than 15 days given to the business owner is generally penalized by the administrative court. The prefect had not justified the brevity of the two-day deadline given to the establishment to submit its observations, but the judge upheld the order because the applicant did not demonstrate that it had been impossible to submit its observations within that timeframe, given that a month elapsed between the formal notice to submit observations dated June 23, 2021, and the closure order dated July 20, 2021, and that the applicant had also been interviewed by the police on June 2, 2021 (Administrative Court of Lyon – 7th Chamber – December 16, 2022 – No. 2106508).
The aforementioned adversarial procedure is not mandatory in three situations:
– in cases of emergency or exceptional circumstances (Article L121-2 of the French Code of Relations between the Public and the Administration);
– in cases where implementing such an adversarial procedure would be likely to jeopardize public order or the conduct of international relations (Art. L121-2 CRPA);
– when legislative provisions have established a specific adversarial procedure (Art. L121-2 CRPA).
On what grounds and for what duration can the order be issued?
The decision may be based on:
– A violation of laws and regulations relating to the business activity of the merchant: the maximum duration will be 6 months. In this case, the prefect must first issue a warning to the merchant. This warning may ultimately replace the closure order when the business failure is exceptional.
– A breach of public order, health, public peace, or public morality: the maximum duration will be 2 months.
– The commission of criminal or unlawful acts related to the establishment’s patronage or operating conditions: the maximum duration will be 6 months. In this case, the operating permit is automatically revoked upon notification of a closure order (Article L3332-15 of the Public Health Code).
In cases 1 and 3, the Minister of the Interior may order the closure of these establishments for a period ranging from 3 months to one year, but the duration of the closure ordered by the State representative in the department is deducted from the Minister’s closure order and is not added to it (Article L3332-16 of the Public Health Code).
When, due to a breach of health or hygiene regulations, an establishment presents or is likely to present a threat to public health, the prefect may also order its closure, requiring that work be carried out. Thus, the business will remain closed until the operator has completed the prescribed work and other measures (for example: mice present in the establishment, staff not trained in hygiene procedures, expiration dates not respected, etc.).
Furthermore, the prefect can even prevent access to the premises, for example, a hotel, to the occupants (hotel tenants) until the prescribed work has been carried out (Article 1331-22 of the Public Health Code). The prefect can also write to the public prosecutor’s office to request the opening of a criminal investigation (for example: for subjecting vulnerable individuals to housing conditions incompatible with human dignity, endangering the lives of others) and, as a precautionary measure, the seizure of rents paid by the hotel occupants into the operator’s bank account, which must be validated by the judge of liberties of the judicial court.
If the prescribed work must be carried out by the operator, the operator can request the landlord to perform it, or the operator can do it themselves and then claim reimbursement from the landlord, who failed to provide premises suitable for the activity stipulated in the lease (for example, commercial premises without a compliant extraction duct, even though the lease specifies a restaurant).
This rule applies to the relationship between the landlord and the commercial tenant, as well as to the relationship between the tenant-manager and the business owner. It is therefore necessary to investigate the origin of the violations cited in the administrative closure order to determine who is responsible. For instance, the Paris Court of Appeal ordered a lessor of a business to reimburse the tenant-manager for the cost of the work carried out, which was their responsibility, based on their obligation to provide the tenant with the leased property and to maintain it in a condition suitable for the intended use. In this case, the business did not comply with applicable regulations, particularly due to the premises’ non-compliance with hygiene standards. Non-compliance of the premises is generally the responsibility of the landlord under their obligation to provide suitable premises, while violations of health and safety regulations regarding food storage and handling are the responsibility of the tenant-manager/operator (Paris Court of Appeal, April 10, 2019, No. 17/11987).
The most frequent reasons for closure include:
- violence within the establishment or even in its immediate vicinity, by or between customers and/or staff or business managers;